Obama's 'risky move' in Florida

U.S. District Judge Roger Vinson has already dealt the Obama administration a staggering blow on health reform, and this week the administration may get another one from the fiery Florida judge.

The Justice Department asked Vinson to clarify his ruling that struck down the law as unconstitutional. Justice must file its brief on the motion by Monday, and Vinson has said he would rule quickly after that. At issue is whether Vinson meant to stop reform implementation in the 26 states that brought the suit.

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The smart money says Vinson will halt implementation, and legal observers are wondering why Justice would take that risk.

“Having lost one game of chicken when it came to the severability of the mandate, the government is now challenging the same judge to back down on whether his decision is binding. Seems like a risky move,” said Randy Barnett, a law professor at Georgetown University.

Jonathan Turley, a constitutional law professor at The George Washington University, said he was surprised by the Justice Department’s move, given that it could have gotten a lot of support for its view that Vinson’s ruling wasn’t clear enough to shut down state implementation.

In his original ruling, Vinson stopped just short of issuing an injunction. He cited a court case that said a declaratory judgment is usually assumed to be “the functional equivalent of an injunction” when the executive branch is involved, because administration officials “will adhere to the law as declared by the court.”

“There is no reason to conclude that this presumption should not apply here,” Vinson wrote.

But even if Vinson were to rule that implementation should stop, that wouldn’t totally upend the law. Most legal experts think the administration would go straight to the 11th Circuit Court of Appeals and ask for a stay of Vinson’s ruling. And they predict that the court would grant it — probably quickly.

The court, which is about evenly balanced between Republican and Democratic appointees, would act sooner rather than later because it would get “sticker shock” at the idea of such disruption happening before the judges had a chance to review the overall case, Turley said.

But the stay would be a reluctant, because by asking for a clarification of a point that was already pretty clear, the Justice Department request was an “insulting motion” that was “disrespectful to the legal system and disrespectful to a judge in their circuit,” said Todd Gaziano, director of the Center for Legal and Judicial Studies at The Heritage Foundation.

“They knew there was nothing in Judge Vinson’s ruling that needed to be clarified. They’re not stupid,” Gaziano said.

The 26 states in the lawsuit have already filed a brief calling the Justice Department request “a transparent attempt to obtain a stay” and saying it shouldn’t get one.

Other legal experts, however, don’t think the Justice Department had a choice. “They just need clarity,” said Orin Kerr of The George Washington University, because Vinson’s decision “left it unclear what the Justice Department was supposed to do.”

“If the judge wants to enjoin the states, that’s fine from the Justice Department’s point of view. They just seek a stay” from the 11th Circuit, Kerr said.